Reporting sexual harassment—not to mention professional misconduct, bullying, unfairness, or other workplace grievances—is not only a matter of speaking up. It is also a matter of being allowed to do so.
Enforced silence is broader than one might think. Over one-third of the US workforce is bound to their company by a non-disclosure agreement, or NDA, according to a Harvard Business Review report this week, which cites figures from a research paper published last year in the Vanderbilt Law Review. The legal contracts, which can force employees to stay silent about anything from trade secrets to corporate culture, have been steadily growing in both number and breadth as companies grow warier about competition and proprietary material.
The problem is when NDAs are extended, or specifically wielded, to cover personal harassment. In the wake of #MeToo—two words that have come to encompass not just a movement against sexual misconduct, but sexism and gender inequality at large—many have questioned whether company-required NDAs end up enabling abusers. Harvey Weinstein’s settlements with the women who accused him of assault included agreements that the women would not pursue litigation or discuss the terms of the deal, in exchange for money. While those contracts were drawn up outside of a workplace setting, their potency makes one wonder whether some company-mandatory NDAs might similarly keep employees from speaking up about harassment, intentionally or otherwise.
But ending NDAs entirely isn’t really an option, when the agreements do have value in protecting companies from competition.
New York state senator Brad Hoylman is one of several people pushing legislation to, instead, prohibit corporate NDAs involving discrimination or harassment. As he explained it to the New York Daily News: “The secrecies around these agreements perpetuate cultures of harassment and abuse by ensuring the victims stay silent and the public remains in the dark. The remaining employees continue to be at risk of unacceptable behavior by the same predator.” Other options posed include limiting the scope of NDAs, or letting them expire after a few years.
There are already exceptions to the enforceability of NDAs: The contracts cannot keep employees from assisting in official government agency investigations or reporting illegal conduct, for example. But as harassment in the workplace comes to the forefront of national conversation, potential further checks to their power are a worthwhile topic of debate.